Letter Ruling  Public Enforcement Letter 92-2: Patricia McDermott

Date:	12/09/1991
Organization:	State Ethics Commission
Referenced Sources:	G.L. c. 268A, Conflict of Interest Law

Patricia McDermott

c/o Thomas Kiley, Esq.
Cosgrove, Eisenberg & Kiley, P.C. One International Place
Boston, MA  02110

Dear Ms. McDermott:

As you know, on September 11, 1991, the State Ethics Commission commenced a preliminary inquiry into allegations that you violated G.L. c. 268A, §§3, 23(b)(2) and (b)(3), by your official dealings with Mary Guzelian (Guzelian) and your ultimate acceptance of a bequest from her estate.  On October 25, 1991, the Commission found reasonable cause to believe that you violated §§3 and 23(b)(3).  (The Commission has not voted to find reasonable cause to believe you violated §23(b)(2).) Aware that the Attorney General and the United States Attorney may be conducting investigations  into your dealings with Guzelian or her estate, the Commission also directed the staff to refer its investigative materials to those agencies for any action they deem appropriate. Finally, in view of certain mitigating circumstances, the Commission voted to resolve its inquiry by issuing this Public Enforcement Letter.[1]

By agreeing to this public letter as a final resolution of this matter, the Commission recognizes that you do not admit to the facts and law as discussed below.  (You deny or have no knowledge of many of the facts and you maintain that your conduct did not violate the conflict law.)  The Commission and you are agreeing that there will be no formal action against you and that you have chosen not to exercise your right to a hearing before the Commission. You have waived no other rights other than the right to have a hearing.[2]

Enclosed is an enforcement letter, Public Enforcement Letter 92-1, of even date issued to State Representative Kevin W. Fitzgerald.  It sets forth the facts and reasoning of the Commission which have led it to conclude that there is reasonable cause to believe that Representative Fitzgerald violated §3(b) by accepting a bequest from Guzelian for or because of acts performed or to be performed within his official responsibility; and violated §23(b)(3) because, under all of the circumstances set out in his letter, the acceptance of such a bequest from someone whom he had helped as a representative created an appearance of impropriety.  Except as set forth below, the facts and discussion in Public Enforcement Letter 92-1 are as applicable to you as they are to the Representative.  Accordingly, they are incorporated by reference into this document, which is itself a public enforcement letter which closes the Commission’s investigation of your conduct.

The principal difference between the Commission’s view of your activities and Representative Fitzgerald’s lies in the extent of the relationship you had with Mary Guzelian.  A careful review of the relevant evidence has led the Commission to conclude that you and Guzelian were extremely close by the time of her death.  Nevertheless, that relationship does not appear to have had the same character on July 24, 1981, when Guzelian’s will was executed.   One cannot say that the motive for Guzelian’s testamentary disposition to you was friendship alone; instead she may have been motivated by a desire to reward you for services the Commission asserts were part of your official duties, or to impel you to continue to provide them in the future.  Therefore, your closer relationship to Guzelian does not alter the ultimate conclusion reached in the enclosed letter, and there is reasonable cause to believe that you violated §3(b) by accepting a bequest from Guzelian because of acts performed or to be performed within your official responsibility, and violated §23(b)(3), because, under all of the circumstances, the acceptance of such a bequest from someone whom you had helped as a legislative aide created an appearance of impropriety.

[1] Pursuant to §5D of its Enforcement Procedures, in lieu of an adjudicatory proceeding, the Commission may resolve  a  matter  through  the  issuance  of  a  public enforcement  letter which assesses no civil penalty but which publicly reviews the alleged violations of law for preventative  and  educational  purposes.   A public enforcement letter may be authorized where the facts and alleged violations warrant a public resolution without the formality and expense of an adjudicatory proceeding or an admission that a subject has violated G.L. c. 268A or G.L. c. 268B. A public enforcement letter may be issued only with the consent of the subject.

[2] You have raised concerns about the confidentiality of Guzelian's medical records and her communications with doctors.  Your counsel has suggested these matters are confidential as a matter of law and that the record must reflect that by accepting this letter you are not participating in the dissemination of privileged material.